Barack Obama speaks in the Rose Garden on November 9. Photo by Cheriss May/NurPhoto via Getty Images
On Wednesday morning, after slamming Donald Trump over and over again during the campaign as a demagogue blowhard who had no business in politics, President Barack Obama had to congratulate the president-elect. But even as Obama urged Americans to get behind the new leader of the United States, he also addressed the elephant in the room—or, in this case, the elephant in the Rose Garden."It is no secret the president-elect and I have some significant differences," the president said. But Obama, who frequently derided George W. Bush during his 2008 campaign, wasn't exactly best buds with the outgoing incumbent, either. Still, Obama reminded America, Bush and company "could not have been more professional or more gracious" on the way out.The peaceful transition of power is a time-honored tradition in American politics, one many observers anticipating a Trump defeat weren't sure he would respect if he lost. But "peaceful" doesn't necessarily mean "friendly"—President Obama still has some time left as the most powerful person on the planet. And given the massive policy differences between him and Trump on almost every issue, one can't help but ask whether he has a shot at making some modest changes or installing some safeguards before handing over the keys to the Oval Office.For some perspective on what, exactly, Obama can do between now and January 20 to make life trickier for Trump, I called up Mark Tushnet. He's a professor at Harvard Law School who clerked for Supreme Court Justice Thurgood Marshall and specializes, among other things, in constitutional law and legal history. Here's what he had to say about what to expect over the next few weeks.VICE: So Obama is still living at the White House for a couple more months. Has he totally exhausted his ability to take action on key issues like immigration, climate change, and gun control, where he and Trump differ wildly? He can't pass anything through a Republican Congress, but could he take some executive actions?
Professor Mark Tushnet: As a formal matter, no, he hasn't exhausted his authority until noon on January 20 next year. As a practical political matter, of course, it's very unlikely he'll be able to do anything substantial during that period because he could do it, and President Trump on the 21st could revoke all that he had done. As a technical matter, though, he still has all the power that a president has.Right, but can Obama do anything to impose limits on Trump or create obstacles for him when he takes office?
There are ways that savvy bureaucrats know to make changing decisions that have already been taken difficult. They can adopt emergency regulations, for example—which they can do more quickly than they would otherwise be able to. Or they can issue various directives to their subordinates that may be difficult to undo. These are all things that savvy managers of any bureaucracy know how to use. But, again, as a practical matter, it's unlikely that the president would want to do anything because it's more or less pointless: It makes life hard for his successor and would damage his reputation, which is something [Obama] cares about.But once executive actions have passed the "rule-making" stage, they're harder to undo, at least quickly, right?
There's this phenomenon called "midnight rules" [or "midnight regulations"], which means the adoption of rules in December and early January of the end of a presidency. It happens some—it doesn't happen as often as people think it does. The rules have to be fairly well along in order to make them effective because there's a process they have to go through. That process takes a long time—you can't rush it in the next eight weeks. But if there are things that are nearing completion, they can be put through.I should say there's a statute on the books that sets up an expedited procedure in Congress to revoke midnight rules, basically. It's been used only once, actually, but we have a statute—so the House and Senate both have to pass it and president has to sign it—but if we have that in January, then any midnight regulation could be repealed using this special statute.How about appointees? Aren't some of the key players in federal agencies like the Department of Justice likely to stay on? And can't Obama appoint a bunch of people who will holdover in a new administration, like George W. Bush did?
Yes, there is a phenomenon that is known inside the Beltway as burrowing, which involves transferring political appointees into the civil service. Political appointees can be removed at will, but civil appointees can be removed only after going through a fairly elaborate process. Burrowing does sometimes occur. There are informal norms against doing it, but it could happen. What happens is you get personnel in place who presumably disagree with the new administration, but once they're in place they can slow down what the administration wants to do. But, in the end, they really can't prevent it from happening.What about launching new civil rights probes at the Justice Department or other executive processes like that?
Investigations of various sorts can get started, and because those are conducted on the ground level—in the civil service—they will continue to occur more or less at a regular pace.And if nothing else, they can be tricky for a new president to be rid of, especially if they involve sensitive issues like, say, hate crimes or Islamophobia, right?
That's exactly the way to put it—it would be tricky to get rid of it. A decent recent example is at the end of the second George W. Bush administration and before President Obama took office, the voting rights section of the Justice Department began an investigation of a Black Panther incident in Philadelphia. And the Obama administration Justice Department terminated that investigation. But it received a not-insignificant amount of political criticism for doing that. So the president on the way out can impose minor and short-term obstacles for the incoming president.Finally, how is the pardon situation likely to play out here, given talk of Obama preemptively bailing out everyone from Hillary Clinton to her aide Huma Abedin and Trump's insinuations during the campaign of jailing Clinton?
So I want to distinguish two things. President Obama has been exercising his pardon and commutation power quite extensively compared to recent history in connection with what he regards as over-incarceration of minor drug offenders. So just last week, I think, he commuted [more than 70] sentences. I would expect there would be a large number in early January.As a matter of law, it's permissible to pardon somebody in advance. It's extremely controversial, but some presidents have done it and gotten away with it. So President Obama could if he wanted to issue these advance pardons [to people like Clinton]. Again, I think it's extremely unlikely—just because of the political controversy that would occur.Follow Matt Taylor on Twitter.
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Professor Mark Tushnet: As a formal matter, no, he hasn't exhausted his authority until noon on January 20 next year. As a practical political matter, of course, it's very unlikely he'll be able to do anything substantial during that period because he could do it, and President Trump on the 21st could revoke all that he had done. As a technical matter, though, he still has all the power that a president has.
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There are ways that savvy bureaucrats know to make changing decisions that have already been taken difficult. They can adopt emergency regulations, for example—which they can do more quickly than they would otherwise be able to. Or they can issue various directives to their subordinates that may be difficult to undo. These are all things that savvy managers of any bureaucracy know how to use. But, again, as a practical matter, it's unlikely that the president would want to do anything because it's more or less pointless: It makes life hard for his successor and would damage his reputation, which is something [Obama] cares about.But once executive actions have passed the "rule-making" stage, they're harder to undo, at least quickly, right?
There's this phenomenon called "midnight rules" [or "midnight regulations"], which means the adoption of rules in December and early January of the end of a presidency. It happens some—it doesn't happen as often as people think it does. The rules have to be fairly well along in order to make them effective because there's a process they have to go through. That process takes a long time—you can't rush it in the next eight weeks. But if there are things that are nearing completion, they can be put through.I should say there's a statute on the books that sets up an expedited procedure in Congress to revoke midnight rules, basically. It's been used only once, actually, but we have a statute—so the House and Senate both have to pass it and president has to sign it—but if we have that in January, then any midnight regulation could be repealed using this special statute.
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Yes, there is a phenomenon that is known inside the Beltway as burrowing, which involves transferring political appointees into the civil service. Political appointees can be removed at will, but civil appointees can be removed only after going through a fairly elaborate process. Burrowing does sometimes occur. There are informal norms against doing it, but it could happen. What happens is you get personnel in place who presumably disagree with the new administration, but once they're in place they can slow down what the administration wants to do. But, in the end, they really can't prevent it from happening.What about launching new civil rights probes at the Justice Department or other executive processes like that?
Investigations of various sorts can get started, and because those are conducted on the ground level—in the civil service—they will continue to occur more or less at a regular pace.And if nothing else, they can be tricky for a new president to be rid of, especially if they involve sensitive issues like, say, hate crimes or Islamophobia, right?
That's exactly the way to put it—it would be tricky to get rid of it. A decent recent example is at the end of the second George W. Bush administration and before President Obama took office, the voting rights section of the Justice Department began an investigation of a Black Panther incident in Philadelphia. And the Obama administration Justice Department terminated that investigation. But it received a not-insignificant amount of political criticism for doing that. So the president on the way out can impose minor and short-term obstacles for the incoming president.Finally, how is the pardon situation likely to play out here, given talk of Obama preemptively bailing out everyone from Hillary Clinton to her aide Huma Abedin and Trump's insinuations during the campaign of jailing Clinton?
So I want to distinguish two things. President Obama has been exercising his pardon and commutation power quite extensively compared to recent history in connection with what he regards as over-incarceration of minor drug offenders. So just last week, I think, he commuted [more than 70] sentences. I would expect there would be a large number in early January.As a matter of law, it's permissible to pardon somebody in advance. It's extremely controversial, but some presidents have done it and gotten away with it. So President Obama could if he wanted to issue these advance pardons [to people like Clinton]. Again, I think it's extremely unlikely—just because of the political controversy that would occur.Follow Matt Taylor on Twitter.